Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v EDI Rail PPP Maintenance Pty Ltd

[2023] FWC 1880

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

EDI Rail PPP Maintenance Pty Ltd

(B2023/765)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 31 JULY 2023

Proposed protected action ballot of employees of EDI Rail PPP Maintenance Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of EDI Rail PPP Maintenance Pty Ltd (EDI or Employer).

On 28 July 2023, the Commission was advised that EDI, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Tara Koot, CEPU Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with EDI, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, and following consultation with the parties, a ballot period of twelve (12) working days from the date of the Order (31 July 2023) has been determined by the Commission. I observe that this is, in effect, the same ballot period proposed[2] in the draft Order.

An Order has been separately issued in PR764726.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] The draft order proposed for the protected action ballot to close on 16 August 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, under Deputy President Hampton, addressed an application filed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) seeking a protected action ballot order for specific employees of EDI Rail PPP Maintenance Pty Ltd (EDI or Employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (Act). EDI did not object to the application, leading to a decision on the papers without a hearing. The CEPU asserted it had been genuinely attempting to reach an agreement with EDI and had fulfilled all necessary requirements under s.443(1) of the Act.

The legal issues in this case involved whether the CEPU had met all statutory prerequisites to conduct a protected action ballot and whether the proposed ballot period was appropriate. The CEPU provided a declaration from Ms. Tara Koot, their Organiser, outlining their bargaining efforts with EDI. Democratic Outcomes Pty Ltd T/A CiVS (CiVS) was designated to conduct the ballot, having recently been approved as an eligible ballot agent under s.468A of the Act. The Commission, after consulting with the parties, determined a twelve-working-day ballot period commencing from the date of the Order, 31 July 2023.

The Deputy President found that the CEPU had satisfied all necessary conditions for a protected action ballot and approved the ballot period as proposed. An Order was issued for the ballot to be conducted by CiVS, with a closing date of 16 August 2023. The matter will be assigned to another Commission member to conduct a compulsory conciliation conference under s.448A of the Act, ensuring the parties are prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established